A bold new option in the conservation toolbox

Good ideas in environmental law that just might work in the real world.

That’s the premise of the Environmental Law and Policy Annual Review, a yearly competition for scholars writing in this important subject area. Four published articles are chosen for the honor, and they will be condensed and published in the Environmental Law Reporter, which is produced by the non-profit Environmental Law Institute in conjunction with Vanderbilt Law School.

An article co-authored by Professor Jessica Owley was named one of the chosen four. Owley’s article, written with Federico Cheever, who teaches at the University of Denver Sturm College of Law, appeared last year in the Harvard Environmental Law Review.

Owley, who teaches environmental law, property and land conservation, often writes and blogs about land-use issues, and she says her winning article came about as part of a larger research collaboration about private land conservation and climate change. Titled “Enhancing Conservation Options: An Argument for Statutory Recognition of Options to Purchase Conservation Easements (OPCEs),” the article argues that state legislatures should integrate this tool into conservation easement law and says doing so would “do for OPCEs what conservation easement statutes have done for conservation easements: transform them into an essential multi-purpose tool for conservation in a changing world.”

“Much of my writing is getting more attention lately because of the turn to non-governmental mechanisms,” Owley says from Spain, where she is spending 2017 in Madrid as a visiting professor at the Universidad Pontificia. “I think generally that private land conservation mechanisms are going to be more popular” as environmentalists and their attorneys adjust to the policies of the new presidential administration.

The article notes that 40 million acres in the United States – an area almost the size of the state of Washington – are subject to conservation easements, through which a government entity or a conservation organization known as a land trust restricts use of the land in order to conserve it. But, it says, climate change has complicated the equation, because “there is no guarantee that the things people value on specific parcels of land will continue to be there in fifty or one hundred years.”

One solution is the use of options to purchase conservation easements. The authors give this example: “If a private land trust or government entity expects a particularly valuable species habitat to migrate over time, but does not know exactly where or when it will migrate, the organization could choose to purchase options to preserve that habitat along a number of potential migration pathways. The group could then purchase conservation easements along only one pathway once the actual migration pattern emerges.”

“In light of the potentially dire effects of climate change on our current system of land conservation, it would be wise to include such an ‘option’ in our conservation toolbox,” the authors conclude.

In addition to Owley and her co-author, other winning articles were written by scholars at Georgetown Law School and Southern Methodist University.